TORTS

Question 1

BATTERY

Answer 1

INTENTIONAL HARMFUL OR OFFENSIVE TOUCHING OF ANOTHER WITHOUT CONSENT OR LEGAL PRIVILEGE

Question 2

ASSAULT

Answer 2

INTENTIONAL PLACING OF ANOTHER IN APPREHENSION OF AN IMMINENT BATTERY WITHOUT CONSENT OR LEGAL PRIVILEGE

Question 3

FALSE IMPRISONMENT

Answer 3

INTENTIONAL RESTRAINT OF ANOTHER THROUGH FORCE OR THREAT THAT CONFINES THE PERSON TO A BOUNDED AREA WITHOUT CONSENT OR LEGAL PRIVILEGE

Question 4

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Answer 4

INTENTIONAL OR RECKLESS ACT, EXTREME AND OUTRAGEOUS CONDUCT, CAUSATION, SEVERE EMOTIONAL DISTRESS

Question 5

TRESPASS TO LAND

Answer 5

INTENTIONAL ENTRY UPON THE PROPERTY IN THE POSSESSION OF ANOTHER WITHOUT CONSENT OR LEGAL PRIVILEGE

Question 6

TRESPASS TO CHATTELS

Answer 6

INTENTIONAL DAMAGE TO OR INTERFERENCE WITH PERSONAL PROPERTY IN THE POSSESSION OF ANOTHER WITHOUT CONSENT OR LEGAL PRIVILEGE

Question 7

CONVERSION

Answer 7

INTENTIONAL EXERCISE OF DOMINION AND CONTROL OVER THE PROPERTY IN THE POSSESSION OF ANOTHER SO AS TO REQUIRE ITS FORCED SALE

Question 8

CONSENT

Answer 8

DEFINITION: WHEN A PERSON VOLUNTARILY AND WILLFULLY AGREES IN RESPONSE TO ANOTHER PERSON’S PROPOSITION. THE PERSON WHO CONSENTS MUST POSSESS SUFFICIENT MENTAL CAPACITY. CONSENT ALSO REQUIRES THE ABSENCE OF COERCION, FRAUD OR ERROR. CONSENT IS AN ESSENTIAL CONSTITUENT OF A CONTRACT AND A DEFENSE TO A TORT.

RULE: CONSENT DOES NOT HAVE TO BE EXPRESSED; IT CAN BE IMPLIED FROM CONDUCT.

RULE: IN ORDER FOR CONSENT TO BE A DEFENSE, IT MUST BE VOLUNTARILY GIVEN. FULL DISCLOSURE OF ALL FACTS IS REQUIRED. CONSENT OBTAINED BY FRAUD IS NOT A VALID CONSENT.

FRAUD VITIATES (IMPAIRS) CONSENT.

Question 9

SHOPKEEPERS PRIVILEGE

Answer 9

A SHOPKEEPER HAS THE PRIVILEGE TO DETAIN A PERSON WHOM HE REASONABLY BELIEVES TO HAVE TAKEN A CHATTEL UNLAWFULLY FOR A REASONABLE PERIOD OF TIME TO CONDUCT A REASONABLE INVESTIGATION.

Question 10

NEGLIGENCE

Answer 10

TO BE LIABLE FOR NEGLIGENCE, A PERSON MUST (1) OWE A DUTY TO THE INJURED PARTY, (2) BREACH THAT DUTY, (3) CAUSE HARM AND (4) THE WRONGFUL CONDUCT MUST BE A SUBSTANTIAL FACTOR IN CAUSING THAT HARM.

Question 11

DUTY

Answer 11

DUTY IS A QUESTION OF LAW FOR THE COURT TO DETERMINE

Question 12

BREACH OF DUTY

Answer 12

THE REASONABLY PRUDENT PERSON TEST: UNDER THE “REASONABLE PRUDENT PERSON” TEST, THE PERSON WHOSE CONDUCT IS BEING EVALUATED IS DEEMED TO HAVE THE KNOWLEDGE THAT AN ORDINARY, REASONABLE PERSON WOULD HAVE.

*A DEFENDANT’S ACTIONS ARE EVALUATED BASED ON THE STANDARD OF WHAT A REASONABLY PRUDENT PERSON WOULD DO UNDER THE SAME AND SIMILAR CIRCUMSTANCES UNDER AN OBJECTIVE STANDARD.

Question 13

STANDARD OF CARE: OBJECTIVE STANDARD

Answer 13

THE “REASONABLE PRUDENT PERSON TEST” IS: WHAT WOULD A REASONABLE PERSON DO UNDER SIMILAR CIRCUMSTANCES USING AN OBJECTIVE STANDARD

Question 14

STANDARD OF CARE: PHYSICAL CHARACTERISTICS OR IMPAIRMENTS

Answer 14

IN DETERMINING THE “REASONABLE, PRUDENT PERSON” STANDARD, THE TRIER OF FACT MAY TAKE PHYSICAL CHARACTERISTICS OF THE PERSON WHOSE CONDUCT IS BEING EVALUATED INTO ACCOUNT

Question 17

STANDARD OF CARE: MINORS

Answer 17

THE STANDARD OF CARE APPLIED TO MINORS IS: WHAT A REASONABLE CHILD OF LIKE AGE, INTELLIGENCE, AND EXPERIENCE, UNDER THE SAME OR SIMILAR CIRCUMSTANCES WOULD DO.

EXCEPTION: MINOR ENGAGED IN “ADULT ACTIVITY”: IF THE MINOR IS ENGAGED IN AN ADULT ACTIVITY AND IN SOME JURISDICTIONS CERTAIN DANGEROUS ACTIVITIES, THE CHILD WILL BE JUDGED AS AN ADULT.

Question 18

STANDARD OF CARE: “INSANITY” STANDARD OF CARE

Answer 18

GENERALLY, THE MENTAL ILLNESS OF THE ACTOR USUALLY IS NOT TAKEN INTO ACCOUNT IN EVALUATING THE REASONABLENESS OF ONE’S CONDUCT.

MENTAL ILLNESS DOES NOT NEGATE INTENT.

Question 19

STANDARD OF CARE: PROFESSIONAL

Answer 19

THE STANDARD OF CARE TO BE APPLIED TO A PROFESSIONAL IS THAT CONDUCT THAT THE ORDINARY MEMBER OF THE PROFESSION WOULD ENGAGE IN UNDER THE SAME OR SIMILAR CIRCUMSTANCES.

Question 20

STANDARD OF CARE: SPECIALIST

Answer 20

A SPECIALIST WILL BE HELD TO A STANDARD HIGHER THAN THAT REQUIRED OF A GENERAL PRACTITIONER. NEVERTHELESS, THE PROFESSIONAL STANDARD IS AN OBJECTIVE STANDARD.

Question 21

STANDARD OF CARE: EXPERT WITNESS

Answer 21

EXPERT TESTIMONY USUALLY REQUIRED IN PROFESSIONAL NEGLIGENCE CASES IN ORDER TO ESTABLISH THE REASONABLE CARE STANDARD.

Question 22

STANDARD OF CARE: LOCALITY STANDARD [USUALLY LIMITED TO DOCTORS]

Answer 22

GENERALLY, THE STANDARD OF CARE IN A PROFESSIONAL NEGLIGENCE CASE IS THE STANDARD OF CONDUCT EXPECTED OF OTHER MEMBERS OF THE PROFESSION IN THE SAME LOCALITY OR COMMUNITY.

HOWEVER, THE STANDARD OF CARE FOR BOARD CERTIFIED PROFESSIONALS THAT ARE NATIONALLY CERTIFIED IS A NATIONAL STANDARD.
NOTES: REMOTE AREAS OF GENERAL PRACTICE VS. METROPOLITAN AREAS, SPECIALISTS, INTERNET, ETC. AVAILABILITY OF MATERIALS ETC.

Question 23

INFORMED CONSENT ISSUES

Answer 23

IN EVALUATING WHETHER A DOCTOR FELL BELOW THE STANDARD OF CARE IN AN INFORMED CONSENT CASE, THE COURTS CONSIDER WHAT, FROM AN OBJECTIVE STANDPOINT, THE REASONABLY PRUDENT PATIENT WOULD WANT TO KNOW ABOUT THE NATURE, CONSEQUENCES, RISKS AND ALTERNATIVES TO TREATMENT.
1. RATIONALE: A FUNDAMENTAL CONCEPT OF AMERICAN JURISPRUDENCE IS THAT EVERYONE HAS THE RIGHT TO DETERMINE WHAT SHALL BE DONE WITH HIS OR HER BODY.

2. REMEMBER DISCUSSING BATTERY WHEN THERE IS NO CONSENT.

Question 24

BREACH OF DUTY TO INFORM

Answer 24

IF TREATMENT IS COMPLETELY UNAUTHORIZED (NO CONSENT) THERE IS A BATTERY. HOWEVER, IF THE PHYSICIAN OBTAINS CONSENT BUT BREACHES THE DUTY TO INFORM, THE PATIENT HAS A CAUSE OF ACTION FOR NEGLIGENCE, REGARDLESS OF THE DUE CARE EXERCISED, PROVIDED THERE IS AN INJURY.

SPLIT: SOME JURISDICTIONS, INCLUDING CALIFORNIA, HAVE CHANGED THE RULE FROM WHAT THE REASONABLE PHYSICIAN WOULD DISCLOSE TO WHAT THE REASONABLE PATIENT WOULD WANT TO KNOW.

Question 25

PHYSICIAN’S PERSONAL INTERESTS

Answer 25

A PHYSICIAN MUST INFORM/DISCLOSE TO HIS PATIENT ANY PERSONAL INTERESTS, WHETHER RESEARCH OR OTHERWISE, THAT MAY AFFECT THE PHYSICIAN’S JUDGMENT. FAILURE TO DO SO MAY GIVE RISE TO A CAUSE OF ACTION FOR PERFORMING A PROCEDURE WITHOUT INFORMED CONSENT.

Question 26

AGGRAVATED NEGLIGENCE

Answer 26

THE CARE REQUIRED BY THE STANDARD OF REASONABLE PERSON WILL VARY ACCORDING TO THE RISK. AS THE DANGER INCREASES, SO DOES THE DEGREE OF CARE TO BE EXERCISED.
1. DANGEROUS THINGS, ELECTRICITY, EXPLOSIVES, ETC.-
2. SPECIAL RELATIONSHIP, COMMON CARRIER, INNKEEPER
3. WILLFUL, WANTON, RECKLESS CONDUCT. (NOTE 3, P. 230)
4. AUTOMOBILE GUEST STATUTES

Question 27

NEGLIGENCE PER SE

Answer 27

A STATUTE CAN BE USED TO ESTABLISH WHAT A REASONABLE PERSON WOULD DO AND A VIOLATION OF THE STATUTE CAN BE USED TO ESTABLISH BREACH OF THE STANDARD OF CARE.

“PROTECT AND PREVENT.” IN ORDER TO APPLY THE “NEGLIGENCE PER SE” DOCTRINE TO ESTABLISH THE ELEMENT OF BREACH, THE COURT MUST DETERMINE THAT:
(1) THE PARTY SEEKING TO PROVE THE VIOLATION IS A MEMBER OF THE CLASS OF PERSONS THE
STATUTE WAS DESIGNED TO PROTECT;
(2) THE HARM THAT OCCURRED WAS ONE THE STATUTE WAS INTENDED TO PREVENT.

Question 28

NEGLIGENCE PER SE DEFENSE: EMERGENCY DOCTRINE

Answer 28

A PERSON IS EXCUSED FROM THE ORDINARY STANDARD OF REASONABLE CARE IF HE OR SHE IS CONFRONTED WITH AN EMERGENCY SITUATION THAT LEAVES LITTLE OR NO TIME FOR THOUGHT, DELIBERATION, OR CONSIDERATION.

Question 29

NEGLIGENCE PER SE DEFENSE: EXCUSED VIOLATION

Answer 29

A PERSON WHOSE CONDUCT IS BEING EVALUATED IS PERMITTED TO SHOW SHE HAD AN EXCUSE FOR THE CONDUCT VIOLATING THE STATUTE. THE DOCTRINE OF “NEGLIGENCE PER SE” CREATES A REBUTTABLE PRESUMPTION WHICH A PARTY MAY REBUT BY PROVING AN EXCUSE FOR VIOLATING THE STATUTE.

Question 30

NEGLIGENCE PER SE: VIOLATION EXCUSED

Answer 30

THE VIOLATION WAS REASONABLE BECAUSE OF PLAINTIFF/DEFENDANT’S SPECIFY TYPE OF “INCAPACITY”; OR

2. DESPITE USING REASONABLE CARE, PLAINTIFF/DEFENDANT WAS NOT ABLE TO OBEY THE LAW; OR
3. PLAINTIFF/DEFENDANT FACED AN EMERGENCY THAT WAS NOT CAUSED BY HIS OWN MISCONDUCT; OR
4. OBEYING THE LAW WOULD HAVE INVOLVED A GREATER RISK OF HARM TO PLAINTIFF/DEFENDANT OR TO OTHERS; OR
5. OTHER REASON EXCUSING OR JUSTIFYING NONCOMPLIANCE.

THE BREACH MUST BE A CAUSE OF THE DAMAGE.

Question 31

BURDEN OF PROOF

Answer 31

PLAINTIFF HAS THE BURDEN OF PROOF AS TO EACH ELEMENT OF HIS CLAIM.

Question 32

CIRCUMSTANTIAL EVIDENCE

Answer 32

CIRCUMSTANTIAL EVIDENCE MAY BE USED TO PROVE THE ELEMENTS OF NEGLIGENCE.

Question 33

CONSTRUCTIVE NOTICE

Answer 33

IT MEANS THE DEFENDANT KNEW OR SHOULD HAVE KNOWN THAT THE HARM WAS THERE, SHOWN THROUGH CIRCUMSTANTIAL EVIDENCE.

Question 34

ACTUAL NOTICE

Answer 34

PLAINTIFF MAY PROVE NOTICE BY CIRCUMSTANTIAL EVIDENCE THAT DEFENDANT HAD NOT INSPECTED ITS PREMISES FOR A LONG PERIOD OF TIME

Question 35

CONSTRUCTIVE NOTICE

Answer 35

CONSTRUCTIVE NOTICE DOES NOT NEED TO BE PROVEN WHEN THE DEFENDANT CREATED THE DANGEROUS CONDITION

Question 36

RES IPSA LOQUITUR

Answer 36

A DOCTRINE USED TO ESTABLISH CONDUCT FELL BELOW THE STANDARD OF CARE. IT IS A SHORTCUT TO ESTABLISH THE ELEMENT OF BREACH OF DUTY. (MEANS: THE THING SPEAKS FOR ITSELF)

**PLAINTIFF CAN USE THE DOCTRINE OF RES IPSA LOQUITUR TO PROVE CONDUCT FELL BELOW THE STANDARD OF CARE IF:
1. THE EVENT IS ONE THAT ORDINARILY WOULD NOT HAVE OCCURRED IN THE ABSENCE OF NEGLIGENCE; AND
2. DEFENDANT HAD EXCLUSIVE CONTROL OVER THE INSTRUMENTALITY.

Question 37

MEDICAL MALPRACTICE

Answer 37

USE OF THE DOCTRINE OF “RES IPSA LOQUITUR” IN A MEDICAL MALPRACTICE CASE BASED UPON A FOREIGN OBJECT, REQUIRES THE FOREIGN OBJECT MUST HAVE BEEN LEFT UNINTENTIONALLY. P MUST PROVE:
1. THE EVENT MUST BE OF A KIND THAT ORDINARILY DOES NOT OCCUR IN THE ABSENCE OF SOMEONE’S NEGLIGENCE;
2. THE EVENT MUST BE CAUSED BY AN AGENCY OR INSTRUMENTALITY IN THE EXCLUSIVE CONTROL OF THE DEFENDANT; AND
3. PLAINTIFF MUST NOT HAVE CONTRIBUTED TO THE OCCURRENCE.

Question 38

BUT-FOR TEST

Answer 38

NEGLIGENCE IS NOT ACTIONABLE UNLESS IT IS A CAUSE IN FACT OF THE HARM FOR WHICH RECOVERY IS SOUGHT. IT NEED NOT BE THE SOLE CAUSE. NEGLIGENCE IS A CAUSE IN FACT OF THE HARM TO ANOTHER IF IT WAS A SUBSTANTIAL ACTOR IN BRINGING ABOUT THAT HARM

Question 39

CHAIN OF CAUSATION

Answer 39

MAY DEFENDANT DEFEAT CAUSATION BY SIMPLY PROVING THE PLAINTIFF MIGHT HAVE BEEN INJURED FOR ANOTHER REASON

Question 40

LOSS OF CHANCE THEORY

Answer 40

THE LOSS OF CHANCE AS A THEORY OF RECOVERY IN A NEGLIGENCE CASE SHOULD BE RECOGNIZED IN THE CONTEXT OF COMMON LAW NEGLIGENCE. THE LOSS OF A SUBSTANTIAL CHANCE OF A BETTER MEDICAL OUTCOME CAN BE A COGNIZABLE INJURY.

Question 41

CONCURRENT TORTFEASORS

Answer 41

WHEN SEPARATE ACTS OF NEGLIGENCE COMBINE TO PRODUCE A SINGLE INJURY, EACH TORTFEASOR IS LIABLE FOR THE FULL AMOUNT OF PLAINTIFF’S DAMAGES EVEN THOUGH NEITHER ALONE WOULD HAVE CAUSED THE INJURY.

NOTE: THIS IS A MATTER OF FAIRNESS. PLAINTIFF WAS NOT AT FAULT AND SHOULD BE MADE WHOLE, AND THEN THE DEFENDANTS CAN LITIGATE BETWEEN THEMSELVES HOW DAMAGES SHOULD BE APPORTIONED BETWEEN THEM. “LET THE DEFENDANTS DUKE IT OUT.”

Question 42

SUMMERS V. TICE

Answer 42

WHERE TWO OR MORE DEFENDANTS ACTED NEGLIGENTLY, BUT ONLY ONE OF THEM COULD HAVE CAUSED THE PLAINTIFF’S INJURY, THE BURDEN OF PROOF REGARDING CAUSATION SHIFTS TO THE DEFENDANTS

Question 43

PROXIMATE CAUSE

Answer 43

PROXIMATE CAUSE IS A LEGAL DOCTRINE BASED ON PUBLIC POLICY WHICH CUTS OFF LIABILITY BECAUSE IT IS NOT FAIR, EVEN THOUGH THE HARM WAS ACTUALLY CAUSED BY DEFENDANT’S WRONGFUL CONDUCT, WHETHER NEGLIGENT, INTENTIONAL, ABNORMALLY DANGEROUS, OR DUE TO A DEFECTIVE PRODUCT.

Question 44

UNFORESEEABLE CONSEQUENCES

Answer 44

GENERALLY, A PERSON IS LIABLE FOR THE CONSEQUENCES OF HIS OWN ACTS. HOWEVER, AS A MATTER OF PUBLIC POLICY, A PERSON IS NOT LIABLE FOR UNFORESEEN CONSEQUENCES.

Question 45

EGGSHELL SKULL PLAINTIFF

Answer 45

IS DEFENDANT LIABLE FOR PLAINTIFF’S UNFORESEEABLE DAMAGES? YES. A DEFENDANT IS LIABLE FOR ALL CONSEQUENCES, WHETHER FORESEEABLE OR NOT, OF A PHYSICAL INJURY TO A PLAINTIFF, EVEN IF ANOTHER PERSON WOULD NOT HAVE BEEN INJURED AS SERIOUSLY.

Question 46

PALSGRAF: CARDOZO

Answer 46

PROXIMATE CAUSE EXTENDS LIABILITY TO THOSE WHOSE CONDUCT CAUSES HARM TO PERSONS WITHIN THE “ZONE OF DANGER” OF THE REASONABLY FORESEEABLE PLAINTIFF.

CARDOZO V. ANDREWS ANDREW’S DISSENT WAS THAT LIABILITY SHOULD EXTEND TO ALL WHOSE HARM IS FROM AN UNBROKEN NATURAL CONSEQUENCE OF EVENTS.

Question 47

INTERVENING CAUSES

Answer 47

AN INDEPENDENT INTERVENING CAUSE BREAKS THE CHAIN OF CAUSATION.

THE ACTS OF A THIRD PARTY THAT INTERVENES BETWEEN THE DEFENDANT’S NEGLIGENT CONDUCT AND THE PLAINTIFF’S INJURY WILL INTERRUPT CAUSATION IF THE CONDUCT IS EXTRAORDINARY, UNFORESEEABLE AND INDEPENDENT, BUT NOT IF A NATURAL CONSEQUENCE FLOWING FROM OR CREATED BY THE NEGLIGENT CONDUCT.

Question 48

CONTRIBUTORY NEGLIGENCE

Answer 48

At common law, contributory negligence by the plaintiff is a complete bar to recovery.

Question 49

LAST CLEAR CHANCE THEORY

Answer 49

The “last clear chance” doctrine comes into play to save a plaintiff from the bar of plaintiff’s contributory negligence if plaintiff can show the negligent defendant had the last clear chance to avoid the accident.

Question 50

MODIFIED COMPARATIVE NEGLIGENCE

Answer 50

“Modified” comparative negligence jurisdictions reduce a plaintiff’s recovery in proportion to the percentage of negligence attributed to plaintiff but place restrictions on when plaintiff’s negligence amounts to a complete bar.

Question 51

PURE COMPARATIVE NEGLIGENCE

Answer 51

“Pure” comparative negligence jurisdictions reduce a plaintiff’s recovery in proportion to the percentage of negligence attributed to plaintiff.

Question 52

JOINT AND SEVERAL LIABILITY

Answer 52

Joint and Several Liability- (Split) Some jurisdictions which have adopted a comparative negligence scheme have eliminated “joint and several” liability. Other states, like California, have kept joint and several liability but only apply the doctrine to “economic” damages. (Prop 51)

Question 53

EXPRESS ASSUMPTION OF THE RISK

Answer 53

Express assumption of the risk is a negligence defense, but not a defense to gross negligence or the intentional torts.

Question 54

IMPLIED ASSUMPTION OF THE RISK

Answer 54

To apply the defense of implied assumption of the risk, plaintiff must have: 1) actual knowledge of the risk; 2) appreciate the risk; and 3) voluntarily encounter the risk.

Question 55

STATUTE OF LIMITATIONS

Answer 55

The statute of limitations is a law that sets the maximum amount of time within which legal proceedings may be initiated. The general rule for computing the time by which a plaintiff must bring a cause of action is to exclude the first day and include the last day, unless the last day is a holiday, and then it is also excluded.. (Code of Civil Procedure section 12.)

Question 56

Immunities

Answer 56

An immunity defense is not based upon the plaintiff’s conduct nor conferred based on certain facts, such as a privilege, but based instead on status or relationship.

Question 57

Employer immunities

Answer 57

Basically, an employee injured AOE/COE may not sue his/her employer. Instead, the injured employee is entitled to recover under the WCAB system. If the employer is uninsured for WCAB, the employer can be sued by the employee and the employer loses the defenses of comparative negligence and assumption of the risk.)

Question 58

Family Immunities

Answer 58

The traditional recognition of the common law spousal immunity is losing favor. The majority of jurisdictions have now abolished the common law interspousal immunity. (Split)

Question 59

Charitable Immunities

Answer 59

The traditional basis for the charitable immunity has gradually eroded so that most jurisdictions have abolished the immunity. When the reason for the rule has vanished so should the rule. (Split)

Question 60

Parental immunity

Answer 60

Most courts hold that a parent is not liable for ordinary negligence in the performance of parental duties. The court found that the parental immunity automatically applied to a stepparent upon marriage.

Question 61

Sovereign Immunities

Answer 61

the government cannot be sued without its consent. A state is entitled to sovereign immunity at common law. So, a state can limit its liability when it chooses to waive its immunity.

Question 62

State and Local governments Immunities

Answer 62

Tort liability may arise against a governmental agency for negligent conduct when 1) a relationship is created between the police and an individual which gives rise to a special relationship, and 2) where the failure to act in some way increased the risk. For example, the entity negligently provided the service and the plaintiff relied upon the assurances. This exception basically requires a showing that plaintiff was worse off.

Question 63

Governmental design immunity

Answer 63

Under the Government Claims Act, a public entity is not liable for an injury, except as provided by statute. The Act provides for direct liability on the part of public entities for injuries caused by maintaining a dangerous condition on their property when the condition created a reasonably foreseeable risk of the kind of injury which occurred and either an employee’s negligence or wrongful act or omission caused the dangerous condition, or the entity was on actual or constructive notice of the condition in time to have taken protective measures.

Question 64

Respondeat Superior

Answer 64

Generally, going and coming to work is not considered to be in the course and scope of work. There are numerous exceptions and typically the general test is whether going and coming is a benefit to the employer.

Question 65

Respondeat Superior- “Frolic and Detour”

Answer 65

An employer is not liable for injuries occasioned during a frolic but is liable for injuries occasioned during a detour

Question 66

Independent Contractors- Vicarious Liability

Answer 66

The hirer of an independent contractor is not liable for the torts of the independent contractor

Question 67

Nondelegable Duty -Independant Contractors

Answer 67

In the case of a nondelegable duty, the person upon whom the duty is imposed is responsible for the independent contractor’s actions in negligently performing the duty.
Note: The independent contractor is still liable.

Question 68

Joint Venture Liability

Answer 68

Vicarious liability may be imposed upon those engaged in a joint venture/joint enterprise. A joint venture/enterprise requires 1) an agreement between two or more persons; 2) to act with a common purpose 3) in which they all have equal control over the direction of the enterprise.

Question 69

Family purpose doctrine

Answer 69

Most states have passed legislation that imposes vicarious liability on the owners of the automobile for the negligence of the driver.

Question 70

Imputed Contributory Negligence

Answer 70

Most states no longer follow the common law rule of the doctrine of imputed contributory negligence because the doctrine no longer makes sense. Applying the doctrine would hold a non-negligent owner-passenger contributorily negligent and defeat a claim. (Split)

Question 71

Strict Liability

Answer 71

-Liability without intentional conduct;
-Liability without negligence; and
-Liability without fault

Question 72

Strict Liability- Animals

Answer 72

Wild animals-At common law, the owner/possessor of a non-domesticated animal is strictly liable for injuries caused by the animal.
Domestic animals-the one bite rule for domestic animals generally applies. “ Scienter” knowledge of dangerous propensities or reason to know may be a factor

Question 73

CACI 462.- Animals

Answer 73

Plaintiff claims that Defendant’s [animal] harmed him and that Defendant is responsible for that harm.
People who own, keep, or control animals with unusually dangerous natures or tendencies can be held responsible for the harm that their animals cause to others, no matter how carefully they guard or restrain their animals.
To establish his claim, Plaintiff must prove all of the following:
1. That Defendant owned, kept, or controlled an [animal];
2. That the [animal] had an unusually dangerous nature or tendency;
3. That before Plaintiff was injured, Defendant knew or should have known that the [type of animal] had this nature or tendency;
4. That Plaintiff was harmed; and
5. That the [animal’s] unusually dangerous nature or tendency was a substantial factor in causing Plaintiff’s harm.

Question 74

Abnormally Dangerous/Ultrahazardous Activities

Answer 74

A defendant may be held liable for damage caused by the “non-natural” use of land even if without fault.

To establish this claim, Plaintiff must prove all of the following:
1. That Defendant was engaged in an ultrahazardous activity;
2. That Plaintiff was harmed;
3. That Plaintiff’s harm was the kind of harm that would be anticipated as a result of the risk created by the ultrahazardous activity; and
4. That Defendant’s ultrahazardous activity was a
substantial factor in causing Plaintiff’s harm.

Question 75

Limitations on Strict Liability

Answer 75

Strict liability does not apply when the injury results from an act of God. Proximate cause is narrower in strict liability cases.
Note: The act of a third party over which defendant has no control cannot give rise to liability even where defendant’s activity is subject to strict liability.

Question 76

Contributory negligence” defense

Answer 76

Contributory negligence is not a defense to strict liability in some jurisdictions. (Split)

Question 77

Strict Products Liability

Answer 77

A manufacturer is strictly liable for injuries caused by a defective product.

Question 78

Products Liability-Negligence

Answer 78

Lack of privity of contract is eliminated as a bar under a product liability theory. Because the manufacturer of a product can foresee that its negligent conduct in manufacturing the product may injure someone other than the buyer, the manufacturer is responsible to all foreseeable plaintiffs.

Question 79

Express Warranty

Answer 79

In a personal injury case based on breach of an express warranty, plaintiff need not be in privity of contract with the manufacturer in order to recover under the express warranty.

Question 80

Implied Warranty

Answer 80

A manufacturer is liable for injuries to another arising out of the breach of the implied warranty of merchantability which is an integral part of every transaction. A party need not be in privity of contract with the manufacturer in order to recover under an implied warranty.

Question 81

Strict Liability in Tort

Answer 81

A manufacturer is strictly liable for injuries caused by a defective product.

Question 82

Product Defects

Answer 82

One engaged in the business of manufacturing, distributing or selling a defective product is strictly liable for harm to persons or property caused by the defect.

A product is defective when at the time of the manufacture, sale or distribution, it contains a 1) manufacturing defect; 2) design defect; and/or 3) a warning defect. To be held liable, the defect must have existed at the time it left the defendant’s possession.

Question 83

Manufacturing Defect

Answer 83

When a product departs from its intended design.

Rule: A product is defective in manufacture if it does not conform to the intended design or to the other products made pursuant to that design.

Question 84

STRICT PRODUCTS LIABILITY
(Manufacturing defect.)

Answer 84

CACI 1201
Plaintiff claims that the product contained a manufacturing defect. To establish this claim, Plaintiff must prove all of the following:
1. That Defendant manufactured/distributed/sold the product;
2. That the product contained a manufacturing defect when it left Defendant’s possession;
3. That Plaintiff was harmed; and
4. That the product’s defect was a substantial factor in causing Plaintiff’s harm.
CACI 1202
A product contains a manufacturing defect if the product differs from the manufacturer’s design or specifications or from other typical units of the same product line.

Question 85

Design Defect

Answer 85

A product has a design defect when the foreseeable risk of harm could have been reduced or avoided by adoption of a reasonable alternative.

Rule: A product has a design defect when the foreseeable risk of harm could have been reduced or avoided by adoption of a reasonable alternative. In a design defect case there is a split of authority.
1. Some jurisdictions use a risk versus utility test (more of a negligence type analysis).
2. Others use the “consumer expectation” test: Is the product reasonably fit for its intended purpose?

Question 86

STRICT PRODUCTS LIABILITY
“Consumer expectation” test

Answer 86

CACI 1203
Plaintiff claims the product’s design was defective because the product did not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, Plaintiff must prove all of the following:
1. That Defendant manufactured/distributed/sold the product;
2. That the product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way;
3. That Plaintiff was harmed; and
4. That the product’s failure to perform safely was a substantial factor in causing Plaintiff’s harm.

Question 87

STRICT PRODUCTS LIABILITY
“Design defect”

Answer 87

CACI 1204
Plaintiff claims that the product’s design caused harm to Plaintiff. To establish this claim, Plaintiff must prove all of the following:
1. That Defendant manufactured/distributed/sold the product;
2. That Plaintiff was harmed; and
3. That the product’s design was a substantial factor in causing harm to Plaintiff.

If Plaintiff has proved these three facts, then your decision on this claim must be for Plaintiff unless Defendant proves that the benefits of the product’s design outweigh the risks of the design. In deciding whether the benefits outweigh the risks, you should consider the following:
(a) The gravity of the potential harm resulting from the use of the product;
(b) The likelihood that this harm would occur;
(c) The feasibility of an alternative safer design at the time of manufacture;
(d) The cost of an alternative design; and
(e) The disadvantages of an alternative design; and
(f) Other relevant factor(s).

Note, defendant may assert as an affirmative defense that the benefits of the product’s design outweigh the risks of the design.

This is a burden shifting provision and, in an essay, should be discussed only after you have concluded that plaintiff was injured by a design defect.

Question 88

Warnings Defect-

Answer 88

When the foreseeable risk of harm could have been reduced or avoided by adoption by reasonable instructions or warnings.
A good warning should:
1. Get the user’s attention.
2. Explain the hazard.
3. Show how to avoid the hazard

Rule: To impose strict liability on a failure to warn theory, plaintiff must prove defendant had actual or constructive knowledge, and knew or reasonably should have known, of the risk or danger that caused the injury.

Question 89

STRICT PRODUCTS LIABILITY
“Warning defect”

Answer 89

CACI 1205
Plaintiff claims that the product lacked sufficient instructions or warning of potential risks/side effects/allergic reactions. To establish this claim, Plaintiff must prove all of the following:
1. That Defendant manufactured/distributed/sold the product;
2. That the product had potential risks/side effects/allergic reactions that were known/ or knowable in light of the scientific/ and medical knowledge that was generally accepted in the scientific community at the time of manufacture/distribution/sale;
3. That the potential risks/side effects/allergic reactions presented a substantial danger when the product is used or misused in an intended or reasonably foreseeable way;
4. That ordinary consumers would not have recognized the potential risks/side effects/allergic reactions; (Plaintiff claims that the product lacked sufficient instructions or warning of potential risks/side effects/allergic reactions. To establish this claim, Plaintiff must prove all of the following)
5. That Defendant failed to adequately warn or instruct of the potential risks/side effects/allergic reactions;
6. That Plaintiff was harmed; and
7. That the lack of sufficient instructions or warnings was a substantial factor in causing Plaintiff’s harm.
The warning must be given to the prescribing physician and must include the potential risks, side effects, or allergic reactions that may follow the foreseeable use of the product. Defendant had a continuing duty to warn physicians as long as the product was in use.

Question 90

STRICT PRODUCTS LIABILITY
“Comparative negligence defense”

Answer 90

CACI 1207A
Defendant claims that Plaintiff’s own negligence contributed to his harm. To succeed on this claim, Defendant must prove both of the following:
1. That Plaintiff negligently used or misused or modified the product or that Plaintiff was otherwise negligent; and
2. That this negligence was a substantial factor in causing Plaintiff’s harm.
If Defendant proves the above, Plaintiff’s damages are reduced by your determination of the percentage of Plaintiff’s responsibility. The court will calculate the actual reduction.

Question 91

Defenses-Plaintiff’s conduct

Answer 91

Misuse of a product is a defense to strict products liability causes of action, unless the abnormal or unintended use of the product was or should have been foreseeable.

Question 92

Nuisance
What constitutes a nuisance?

Answer 92

Public Nuisance- An unreasonable interference with a right common to the general public whether it amounts to substantial interference with the public health, safety, peace, comfort or convenience or involves conduct proscribed by statute.

Private Nuisance- An unreasonable interference with the use or enjoyment of a property interest in land

Question 93

Civil Code § 3480-3481- Public Nuisance

Answer 93

3480
A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.
3481
Every nuisance not included in the definition of the last section is private.

Question 94

Civil Code § 3490-3494- Public Nuisance

Answer 94

3490
No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.

3491
The remedies against a public nuisance are:
1.Indictment or information;
2.A civil action; or,
3.Abatement.

3492
The remedy by indictment or information is regulated by the Penal Code.

3493
A private person may maintain an action for a public nuisance, if it is especially injurious to himself, but not otherwise.

3494
A public nuisance may be abated by any public body or officer authorized thereto by law.

Question 95

Civil Code § 3501-3503- Private Nuisance

Answer 95

3501
The remedies against a private nuisance are:
1.A civil action; or,
2.Abatement.

3502
A person injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury.

3503
Where a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon his land, reasonable notice must be given to him before entering to abate it.

Question 96

CACI 2020 Public Nuisance

Answer 96

Plaintiff claims that he suffered harm because Defendant created a public nuisance. To establish this claim, Plaintiff must prove all of the following:
1. That Defendant, by acting or failing to act, created a condition that [insert one or more of the following:]
-was harmful to health; or
-was indecent or offensive to the senses; or
-was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; or
-unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway;
2. That the condition affected a substantial number of people at the same time;
3. That an ordinary person would be reasonably annoyed or disturbed by the condition;
4. That the seriousness of the harm outweighs the social utility of Defendant’s conduct;
5. That Plaintiff did not consent to Defendant’s conduct;
6. That Plaintiff suffered harm that was different from the type of harm suffered by the general public; and
7. That Defendant’s conduct was a substantial factor in causing Plaintiff’s harm.

Question 97

CACI 2021 Private Nuisance

Answer 97

Plaintiff claims that Defendant interfered with Plaintiff’s use and enjoyment of his land. To establish this claim, Plaintiff must prove all of the following:
1. That Plaintiff owned/leased/occupied/controlled the property;
2. That Defendant, by acting or failing to act, created a condition or permitted a condition to exist that insert one or more of the following:
was harmful to health; or
was indecent or offensive to the senses; or
was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; or
unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway;
3. That this condition interfered with Plaintiff’s use or enjoyment of his land;
4. That Plaintiff did not consent to Defendant’s conduct;
5. That an ordinary person would be reasonably annoyed or disturbed by Defendant’s conduct;
6. That Plaintiff was harmed;
7. That Defendant’s conduct was a substantial factor in causing Plaintiff’s harm; and
8. That the seriousness of the harm outweighs the public benefit of Defendant’s conduct.

Question 98

CACI 2022 Determining Harm

Answer 98

In determining whether the seriousness of the harm to Plaintiff outweighs the public benefit of Defendant’s conduct, you should consider a number of factors.
To determine the seriousness of the harm Plaintiff suffered, you should consider the following:
a. The extent of the harm, meaning how much the condition Defendant caused interfered with Plaintiff’s use or enjoyment of his/her property, and how long that interference lasted.
b. The character of the harm, that is, whether the harm involved a loss from the destruction or impairment of physical things that Plaintiff was using, or personal discomfort or annoyance.
c. The value that society places on the type of use or enjoyment invaded. The greater the social value of the particular type of use or enjoyment of land that is invaded, the greater is the seriousness of the harm from the invasion.
d. The suitability of the type of use or enjoyment invaded to the nature of the locality. The nature of a locality is based on the primary kind of activity at that location, such as residential, industrial, or other activity.
e. The extent of the burden (such as expense and inconvenience) placed on Plaintiff to avoid the harm.

Question 99

CACI 2022 Balancing Test

Answer 99

To determine the public benefit of Defendant’s conduct, you should consider:
a. The value that society places on the primary purpose of the conduct that caused the interference. The primary purpose of the conduct means Defendant’s main objective for engaging in the conduct. How much social value a particular purpose has depends on how much its achievement generally advances or protects the public good.
b. The suitability of the conduct that caused the interference to the nature of the locality. The suitability of the conduct depends upon its compatibility to the primary activities carried on in the locality.
c. The practicability or impracticality of preventing or avoiding the invasion.

Question 100

CACI 2031 Damages

Answer 100

If you decide that Plaintiff has proved that Defendant committed a trespass/nuisance, Plaintiff may recover damages that would reasonably compensate him for the annoyance and discomfort caused by the injury to his peaceful enjoyment of the property that he occupied.

Question 101

Defamation

Answer 101

A false unprivileged publication which exposes a person to hatred, contempt, ridicule or obloquy which causes him to be shunned or avoided or has a tendency to injure him in his occupation. It may be “written”- libel, or “oral”- slander.
1. Libel-More serious because it is more permanent in nature; a writing, picture, effigy, or other fixed representation.
2. Slander- Oral statements and includes radio, mechanical or other means

Question 102

DEFAMATION - ELEMENTS

Answer 102

Elements: To prove defamation plaintiff must establish that defendant uttered an unprivileged, false, intentional or negligent publication, understood by a third person which tends to expose plaintiff to hatred, contempt, ridicule, or obloquy (disgrace), and which has a natural tendency to injure or that causes special damage
Publication means it must be uttered/communicated to a third person who understands its defamatory meaning and that it applies to plaintiff. It may be directed to an individual, a class of persons to which plaintiff belongs, a business, but not to one who is deceased.
One who repeats or republishes a defamatory statement is just as liable as the original defamer, even if the publisher says he/she is only repeating a rumor.
Single publication rule.

Question 103

DEFAMATION - COMMON LAW

Answer 103

Common law: All libel is actionable without proof of special damage. But statements not susceptible on their face of defamatory meaning are not actionable without a showing of special damage.

Question 104

SLANDER PER SE

Answer 104

A false and unprivileged publication orally uttered that does one or more of the following:
1. Charging someone with a serious crime.
2. Imputation of infectious or loathsome disease.
3. Tends to injure one in his occupation, profession or trade.
4. Imputation of impotence or want of chastity.

Malice is not an element of defamation but is necessary when public figures are involved because of first amendment free/speech issues (NY Times v. Sullivan ) and to recover punitive damages. State protected interest v. federal right to free speech.

Question 105

Truth is an absolute defense

Answer 105

Truth is an absolute defense to an action for defamation. Substantial truth is sufficient.

Question 106

CACI 1731 Trade Libel - Essential Factual Elements

Answer 106

PLAINTIFF claims that DEFENDANT harmed him/her by making a statement that disparaged PLAINTIFF’s product/service. To establish this claim, PLAINTIFF must prove all of the following:
1. That DEFENDANT made a statement that [would be clearly or necessarily understood to have] disparaged the quality of PLAINTIFF’s product/service;
2. That the statement was made to a person other than PLAINTIFF;
3. That the statement was untrue;
4. That DEFENDANT [knew that the statement was untrue/acted with reckless disregard of the truth or falsity of the statement];
5. That DEFENDANT knew or should have recognized that someone else might act in reliance on the statement, causing PLAINTIFF financial loss;
6. That PLAINTIFF suffered direct financial harm because someone else acted in reliance on the statement; and
7. That DEFENDANT’s conduct was a substantial factor in
causing PLAINTIFF’s harm.

Question 107

“Class of persons” defamation

Answer 107

Statements about a class must have some particular circumstances which point to the plaintiff as a person in that class in order to prevail. The size of the class may defeat the claim.
Example: All male flight attendants are gay.

-Where the group or class libeled is large, none can sue.

-Where the group or class libeled is small, then any member can sue if every member of the group is referred to.

Question 108

Defamation - Publication

Answer 108

To bring an action for defamation, plaintiff must show that a reasonable person reading/hearing the publication could identify the statements to be about plaintiff.

Note: The author and publisher are jointly and severally liable.

Question 109

“The broadcast rule.”

Answer 109

A radio broadcast/telecast not read from a written script can be libelous. Defamation by radio is actionable per se in libel.

Question 110

SLANDER PER SE - “Damage must be to one’s reputation to be actionable if not defamatory on its face.”

Answer 110

If the utterance is slander per se, it is actionable on its face and no special damages must be proven. Otherwise, plaintiff must prove some particular damage has happened which must flow from the damage to plaintiff’s character/reputation. Once that proof is made, plaintiff may then recover other damages.

Question 111

Libel Per Se and Libel Per quod

Answer 111

At common law, it was not necessary to prove special damages to maintain an action for libel. All libel was libel per se.
Now, in some jurisdictions, if the libel is not defamatory on its face and it was necessary to be aware of extrinsic facts in order to appreciate its defamatory implications, it was sometimes called libel per quod.

Question 112

“Publication must be made to someone other than plaintiff, who understands it.”

Answer 112

Publication requires communication of the defamatory words to someone other than the person defamed, and that the other person must understand it to be defamatory.

Note: The hurt is not to plaintiff of a false accusation but rather how others will view him.

Question 113

“The Internet” case

Answer 113

An interactive internet provider service defendant is immune from liability per 47 U.S.C. 230(c)(1). That statute states: “No provider of an interactive computer service shall be treated as a publisher.”

Question 114

“Republication” and the “single publication rule”

Answer 114

Under the modern rule of libel, the single publication rule gives rise to but one cause of action for libel which begins at the time of the original publication. The common law rule provided that every sale was a new publication.

See Note 1: Each edition is a new a new publication but gives rise to only one single publication rule.

Question 115

The 1st amendment right to free speech case.
“Actual malice”

Answer 115

The First Amendment guarantee of free speech in the Federal Constitution prohibits public officials from recovering damages for defamation relating to their official conduct unless they can prove the statement was made with actual malice. Actual malice is established when the speaker had knowledge that the statement was false or acts with reckless disregard to whether it was false or not.

Question 116

ACTUAL MALICE

Answer 116

“Actual malice” can be satisfied by reckless disregard for the truth, but there must exist sufficient proof that defendant entertained serious doubts about the truth of his publication. Defendant cannot ensure a favorable verdict by his subjective belief, nor is the standard an “objective” one. The trier of fact must determine if the publication is made in good faith. (Remember in the intentional torts and negligence the cases where the defense was a good faith belief…)

Question 117

“ Clear and convincing evidence is the burden to establish actual malice or willful and reckless disregard.”

Answer 117

In an action against a public figure the New York Times v. Sullivan “actual malice” standard applies. and proof must be made by clear and convincing evidence of actual malice. Failure to investigate (nonfeasance) alone is not sufficient but intentional avoidance of the truth may be.

Question 118

PRIVATE PLAINTIFFS

Answer 118

A newspaper or broadcaster that publishes defamatory material about an individual, who is not a public official or a public figure, may be held to a lower standard than the New York Times v. Sullivan “actual malice” standard. This is a balancing of the freedom of speech versus the news worthiness of the publication.
Consider whether plaintiff had “thrust himself” into the public issue and the fairness of requiring a private individual to shoulder the burden of proof.
Note: Applies to individuals and the press.

Question 119

Speech of private concern

Answer 119

Speech on matters of purely private concern is of less First Amendment concern, and punitive damages may be awarded absent a showing of “New York Times “actual malice”.

Question 120

Falsity

Answer 120

Publications of public concern about a private figure plaintiff must be shown by plaintiff to be false. The burden is on the plaintiff bringing suit. So, “free speech” balancing overcomes the common law presumption of falsity.
This is a burden shifting rule required by the first amendment.

Question 121

Opinion

Answer 121

An “opinion” cannot be the basis of a defamation action. Statements about a person that cannot be reasonably interpreted as stating actual facts about a person are protected speech.

Question 122

Privileges

Answer 122

Absolute
1. Judicial privilege
-Judges
-Witnesses
-Must have some reasonable bearing on the subject of inquiry
-It does not have to be within the rules of evidence
-It does not have to necessarily be relevant
2. Legislative proceedings
-Congress, etc. in the performance of their duties
-Federal, state, civic

Question 123

Conditional or Qualified Privilege

Answer 123

A publisher may have a qualified privilege when the utterance is fairly made in the discharge of a public or private duty, or in the conduct of one’s affairs in matters of interest provided it is only published to those who need to know.

Question 124

SPEECH ACT - DEFAMATION

Answer 124

Under the “SPEECH ACT”, a party may enforce a foreign defamation judgment in the United States only if the judgment satisfies both our First Amendment and due process considerations.

Question 125

Remedies for Defamation

Answer 125

Damages
Common law-damages presumed for libel and slander per se.
Gertz: Held that damages confined to compensation for actual injury.
Dun & Bradstreet: Held that the common law position of presumed damages applies where publication is not of public concern.
-Special damages – must be proved.
-Mitigation of damages
-Libel proof plaintiff- a person with such a foul reputation that they are not entitled to redress. (Dr. Kevorkian, known for physician assisted suicide being called a killer or criminal.)
-Retraction statutes-must be unequivocal/demand